Excerpt:.....it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - on appeal, the deputy commissioner of sales tax held that the assessee had failed to establish that paints were utilised directly in the generation and distribution of electricity......of law to this court for its opinion :whether, under the facts and circumstances of the case, sale of paints to the m.p. electricity board for rs. 61,506 was eligible for the concessional rate of tax provided under notification no. 2371/1315-v-st dated 19th june, 1965, when necessary declarations had been furnished by the electricity board ?2. the material facts giving rise to this reference briefly are as follows : the assessee is a dealer in paints and was assessed to sales tax under the act for the year 1966-67. the assessee contended before the assessing authority that the sale of paints to the m. p. electricity board for a sum of rs. 61,506 should be taxed at a concessional rate vide notification no. 2371-1315-v-st dated 19th june, 1965. the contention was not, however, upheld.....

Judgment:

G.G. Sohani, J.

1. By this reference under Section 44 of the M. P. General Sales Tax Act, 1958, hereinafter called the Act, the Board of Revenue has referred the following question of law to this Court for its opinion :

Whether, under the facts and circumstances of the case, sale of paints to the M.P. Electricity Board for Rs. 61,506 was eligible for the concessional rate of tax provided under Notification No. 2371/1315-V-ST dated 19th June, 1965, when necessary declarations had been furnished by the Electricity Board ?

2. The material facts giving rise to this reference briefly are as follows : The assessee is a dealer in paints and was assessed to sales tax under the Act for the year 1966-67. The assessee contended before the assessing authority that the sale of paints to the M. P. Electricity Board for a sum of Rs. 61,506 should be taxed at a concessional rate vide Notification No. 2371-1315-V-ST dated 19th June, 1965. The contention was not, however, upheld by the assessing authority. On appeal, the Deputy Commissioner of Sales Tax held that the assessee had failed to establish that paints were utilised directly in the generation and distribution of electricity. In this view of the matter, the appeal preferred by the assessee was dismissed. On second appeal, the Board of Revenue, however, upheld the contention of the assessee. Hence, at the instance of the department, the Board has referred the aforesaid question of law to this Court for its opinion.

3. Now, under Section 12 of the Act, the State Government is authorised to grant exemption and by the notification dated 19th June, 1965, the State Government had partly exempted the class of goods mentioned in that notification from payment of tax subject to the condition specified in that notification. It is not disputed that paints are covered in the class of goods referred to in the said notification. It was, however, contended, on behalf of the department, that the condition specified in that notification subject to which exemption was allowed was not fulfilled. That condition is as follows :

When sold by a dealer registered under the M. P. General Sales Tax Act, 1958, to the M. P. Electricity Board or any other electrical undertaking registered under the said Act and supplying the electrical energy to the public under a licence or sanction granted or deemed to have been granted under the Indian Electricity Act, 1910, against a declaration in writing in the appended form that the goods sold are purchased for use by it in the distribution of such energy for sale.

In the instant case, the declaration was furnished on behalf of the M. P. Electricity Board that the Electricity Board had purchased paints from the petitioner for use in the distribution of electrical energy for sale. The learned Member of the Board of Revenue has not found that the declaration made by the M. P. Electricity Board was false or that there was any collusion between the assessee and the M. P. Electricity Board. In these circumstances, our answer to the question referred to us is in the affirmative and against the department.